Warren v. Duval
| Decision Date | 30 June 1938 |
| Citation | 124 Conn. 448,200 A. 804 |
| Court | Connecticut Supreme Court |
| Parties | WARREN v. DAVAL et al. |
Case Reserved from Superior Court, New London County; Patrick B O'Sullivan, Judge.
Action for the construction of a will by George Henry Warren trustee under the will of Charles Phelps Williams, Sr. deceased, against Elizabeth W. Duval and others. The case was presented to the Supreme Court of Errors on reservation.
Order in accordance with opinion.
John M. Comley, of Stamford, for plaintiff.
Francis F. McGuire and Frank L. McGuire, both of New London, for defendant Elizabeth W. Duval.
Leonard M. Daggett and Stanley Daggett, both of New Haven, for defendants Schermerhon and others.
Herbert W. Rathbun, of Westerly, R. I., for defendant Elizabeth B. Williams, executrix.
Israel Nair and David L. Nair, both of New Britain, for defendants Egan, administrator, and others.
Lucius F. Robinson, Jr., of Hartford, for defendants Warren.
Walter N. Maguire and Raymond E. Hackett, both of Stamford, for defendant Miller, executor.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.
The questions presented in this reservation arise under the will of Charles P. Williams who died October 28th, 1879. He made a few bequests and devises, and then provided in the eighth paragraph that ‘ all the rest and residue of my estate real and personal’ should be divided into a certain number of shares of equal value, and gave these shares to various persons and corporations. The controversy before us concerns the disposition of certain of these shares which were devised and bequeathed in the seventeenth clause of the will. This clause gave one hundred and twenty-five shares to a trustee for each of the testator's children by his wife Georgia, the income to be paid to them during their lives and ‘ upon the decease of either of them [to] pay over to the lawful issue of such deceased and assign to them the one hundred and twenty-five shares held in trust for such deceased as aforesaid and the assets making up the same, to be theirs forever, but if there be no such issue surviving them to my other and surviving children by my said wife Georgia and the surviving issue of any who may be dead.’ The testator's children referred to in this clause were Georgia Williams Warren and Charles Phelps Williams, Jr. Both have died, the latter in 1935. He had two children, Georgia Williams Miller and Elizabeth Duval. Mrs. Miller died before her father, leaving two children. The first question we shall discuss concerns the right of the descendants of Charles Phelps Williams, Jr., to take the remainder interest in the shares of which he had the life use.
At the time the testator died there was in effect a statute which provided as follows: ‘ No estate in fee simple, fee tail, or any less estate, shall be given, by deed or will, to any persons but such as are, at the time of making such deed or will, in being, or to their immediate issue or descendants; and every estate, given in fee tail, shall be an absolute estate in fee simple, to the issue of the first donee in tail.’ Revision of 1875, p. 352, tit. 18, c. 6, pt. 1, § 3. By repeated decisions the words ‘ immediate issue’ in this statute have been construed to mean children and not more remote descendants and the provisions of the statute have been held to apply to gifts of all types of property, real, personal or both. Leake v. Watson, 60 Conn. 498, 509, 512, 21 A. 1075; Bartlett v. Sears, 81 Conn. 34, 41, 70 A. 33; Daskam v. Lockwood, 103 Conn. 54, 59, 130 A. 92. ‘ The word ‘ issue’ when used as a word of purchase and unaffected by any circumstances showing a different intent means descendants of every degree.' Dolbeare v. Dolbeare, 124 Conn. 286, 287, 199 A. 555, 556. It is not the equivalent of ‘ immediate issue’ within the meaning of the statute. Bartlett v. Sears, supra.
We have at times construed the word issue to mean children and one consideration which as weighed with us in so doing is the fact that thereby a construction which would offend against the rule against perpetuities and avoid partial intestacy can be obviated. Mitchell v. Mitchell, 73 Conn. 303, 308, 47 A. 325; Russell v. Hartley, 83 Conn. 654, 664, 78 A. 320; Hoadley v. Beardsley, 89 Conn. 270, 278, 93 A. 535; Middletown Trust Co. v. Gaffey, 96 Conn. 61, 66, 112 A. 689; Daskam v. Lockwood, 103 Conn. 54, 60, 130 A. 92; Ansonia National Bank v. Kunkel, 105 Conn. 744, 750, 136 A. 588. Thereby the intent of the testator will be effectuated, because it is not to be presumed that he would make a disposition of his property in violation of law. Woodruff v. Marsh, 63 Conn. 125, 136, 26 A. 846,38 Am.St.Rep. 346. The rule is that, ‘ If two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity, while, by following the other, it would be valid and operative, the latter mode must be preferred.’ Wolfe v. Hatheway, 81 Conn. 181, 185, 70 A. 645, 647. But in no case have we given the word ‘ issue’ other than its primary meaning merely to avoid the effect of the statute, in the absence of language which, read in light of the surrounding circumstances, disclosed an intent on the part of the testator to use the word in another sense. Bartlett v. Sears, 81 Conn. 34, 41, 70 A. 33; Perry v. Bulkley, 82 Conn. 158, 165, 72 A. 1014; Pease v. Cornell, 84 Conn. 391, 395, 80 A. 86; Comstock v. Bridgeport Trust Co., 106 Conn. 514, 517, 138 A. 440. As bearing upon the intention of the testator in the will before us, it should be noted that at the time it was made the meaning of the existing Statute against Perpetuities was not generally understood to be that given to it in 1891 when Leake v. Watson, supra, was decided; and a gift to the issue of one who was alive at the death of the testator was by no means commonly regarded as in violation of the statute. See Beardsley v. Johnson, 105 Conn. 98, 112, 134 A. 530.
The will before us is on the whole very well drawn, and rather unusual in its adherence to technical accuracy. Not only in the clause we are considering but in others the testator used the words ‘ issue’ and ‘ children’ in close juxtaposition under circumstances where had he meant children by the former word it would have been simple and natural for him to have used it. The various clauses of the will show a studied use of the word children where they were intended and of the word issue when more remote descendants were to be included. It is true that in the eighteenth paragraph of the will he made a provision for his children by his wife Georgia and added that should either of them die before reaching the age of twenty-one his or her ‘ issue’ surviving should be entitled to the property; and as a child under twenty-one could not have grandchildren only children could have been included in this provision. From this it is argued that, as issue here must necessarily be restricted to children, so the same word should be given that meaning in the clause we are considering. But if this were so, issue must be taken to mean ‘ children’ throughout the will and we would have several provisions where the two words would then be used in the same sentence with the same meaning, which would be very strange. The use of the word ‘ issue’ in connection with the testator's grandchildren in the eighteenth paragraph is rather to be attributed to a momentary oversight than to an intent to give to it the meaning of children. We find no warrant in the will for construing the word ‘ issue’ to mean children.
As some of the issue of the testator's son might not be children, the gift to them would be invalid. Wheeler v. Fellowes, 52 Conn. 238, 244; Hewit v. New York, N.H. & H. R. Co., 70 Conn. 637, 642, 40 A. 605; White v. Allen, 76 Conn. 185, 189,65 A. 519; Hartford Trust Co. v. Wolcott, 85 Conn. 134, 137, 81 A. 1057. The principle applied under the common-law rule against perpetuities that, if a gift vests in a class within the period allowed, it does not offend against the rule even though it may open to let in after-born children who might not be able to taken upon a direct gift to them, is not applicable under the statute. Wheeler v. Fellowes, supra. Nor is the situation before us like that considered in Bartlett v. Sears, 81 Conn. 34, 44, 70 A. 33, and Farnam v. Farnam, 83 Conn. 369, 384, 77 A. 70, where we discussed a gift made to persons who might take under the statute, with a further limitation over upon the death of any one of them, to persons not within the class of those permitted by the statute, and we concluded that, the latter gift being void, the property would vest in those to whom it was first given, and the interest of one who died would pass to those entitled to inherit his estate.
Counsel for the children of a deceased daughter of the life tenant advances an interesting argument, to this effect: The Connecticut Statute against Perpetuities was the enactment of a previously existing rule, a part of the common law of Connecticut, that a grant or devise to the child of an unborn child was void; this rule concerned solely the devolution of title of real estate and the statute was extended to include personal property only by judicial decision; Leake v. Watson, supra, which finally determined the construction of the statute, was decided in June, 1891, but by Chapter 249 of the Public Acts of 1895, the portion of the...
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